State v. Benge

• Citation: 661 N.E.2d 1019,75 Ohio St.3d 136
• Decision Date: 04 March 1996
• Docket Number: No. 95-112,95-112
• Parties: The STATE of Ohio, Appellee, v. BENGE, Appellant.
• Court: Ohio Supreme Court

Page 136

75 Ohio St.3d 136

661 N.E.2d 1019

The STATE of Ohio, Appellee, v. BENGE, Appellant.

No. 95-112.

Supreme Court of Ohio.

Submitted December 5, 1995.

Decided March 4, 1996.

John F. Holcomb, Butler County Prosecuting Attorney, Daniel G. Eichel and Robert N. Piper III, Assistant Prosecuting Attorneys, for appellee.

David H. Bodiker, Ohio Public Defender, J. Joseph Bodine, Jr. and Stephen A. Ferrell, Assistant Public Defenders, for appellant.

FRANCIS E. SWEENEY, Sr., Justice.

Benge presents twenty propositions of law for our review. Although we decline to address each one in writing, we have fully considered Benge's propositions of law, independently weighed the statutory aggravating circumstances against the mitigating factors, and reviewed the proportionality of the sentence to other similar cases. See State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus; State v. Simko (1994), 71 Ohio St.3d 483, 487, 644 N.E.2d 345, 350. For the reasons that follow, we affirm the convictions and the death penalty sentence.

I Voluntary Manslaughter Instructions

Appellant contends in his first proposition of law that the trial court's instruction on voluntary manslaughter was improperly worded and deprived him of a fair trial.

The trial court first instructed the jury on the elements of aggravated murder. It further charged the jury as follows: "If you find that the State proved beyond a reasonable doubt all of the essential elements of aggravated murder, your verdict must be guilty of that offense and in that event you will not consider any lesser charge." The court told the jury to consider voluntary manslaughter if they found that the state failed to prove aggravated murder or aggravated robbery. The court then went on to define "voluntary manslaughter" and stated: "If you find that the State proved beyond a reasonable doubt that the Defendant purposely caused the death of Judith Gabbard but you also find the Defendant proved by a preponderance of the evidence that he acted while under the influence of sudden passion or in a sudden fit of rage either which was brought on by serious provocation occasioned by the victim that was reasonably sufficient to incite the Defendant into using deadly force, then you must find the Defendant guilty of voluntary manslaughter."

The court also instructed the jury that "[i]f the evidence warrants it, you may find the Defendant guilty of an offense lesser than that charged in the indictment.

"However, notwithstanding this right it is your duty to accept the law as given to you by the Court, and if the facts and the law warrant a conviction of the offense charged in the indictment, namely aggravated murder, then it is your duty to make such a finding uninfluenced by your power to find a lesser offense."

The court also instructed the jury on how to complete the verdict forms and charged: "If your verdict is guilty [on the charge of aggravated murder], proceed to Specification One and Two and do not consider lesser included charges.

"If your verdict is not guilty or if you are unable to reach a unanimous verdict, proceed to the lesser included charge of murder or voluntary manslaughter."

Appellant argues that the court's instructions regarding voluntary manslaughter were erroneous because the jury was precluded from considering voluntary manslaughter once he was found guilty of aggravated murder. According to appellant, the jury should have been instructed that once it found the elements of aggravated murder present, it should assess whether the voluntary manslaughter evidence mitigated his culpability for the crime.

"Voluntary manslaughter" is defined in R.C. 2903.03(A) and permits a defendant to mitigate a charge of aggravated murder or murder to manslaughter if the defendant establishes the mitigating circumstances of sudden passion or a sudden fit of rage in response to serious provocation by the victim sufficient to incite the defendant to use deadly force. State v. Rhodes (1992), 63 Ohio St.3d 613, 590 N.E.2d 261, syllabus; see, also, State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294. Voluntary manslaughter is considered an inferior degree offense to aggravated murder, which means that "its elements are identical to or contained within the indicted offense, except for one or more additional mitigating elements." Id. at paragraph two of the syllabus. We agree with appellant that the jury should have been instructed to consider the mitigating evidence to determine whether appellant proved voluntary manslaughter.

Nevertheless, defense counsel below failed to object to the court's charge. Therefore, even if the jury instruction is deemed improper, such an error will not mandate reversal unless it constitutes plain error. In other words, we must determine whether "but for the error, the outcome of the trial clearly would have been otherwise." State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus. The only evidence of provocation was appellant's testimony that the victim tried to run him over and that he became enraged. However, the physical evidence, including the presence of blood and hair on the tire and both sides of the tire track, indicates that appellant may have driven the car through a pool of blood after he beat the victim. The testimony of several state witnesses further supports the state's version of what occurred rather than appellant's. Thus, there was sufficient evidence to support appellant's convictions. Based on the evidence presented, we find no plain error with the court's instructions. Accordingly, appellant's first proposition of law is overruled.

II Prosecutorial Misconduct

In his second and third propositions of law, appellant alleges prosecutorial misconduct. Benge first points to the fact that during the guilt phase the state introduced a photo of him wearing a cap with the slogan, "No More Mr. Nice Guy" and in the penalty phase closing argument commented on that slogan. We find that the state's reference to this slogan does not warrant reversal. The photo of appellant wearing this cap was identified at trial as depicting how appellant was dressed the morning the victim was killed.

Appellant alleges these further instances of misconduct during the penalty phase closing argument: (1) using nonstatutory aggravating circumstances by emphasizing the gruesome nature of the killing; (2) "trivializing" mitigation evidence; (3) arguing the absence of a mitigating factor; and (4) denigrating defense counsel by stating that defense counsel merely "has a job to do." In this case, with the exception of one example of alleged misconduct, defense counsel failed to object at trial. A close review of these comments reveals no plain error.

We are mindful that a prosecutor is entitled to a certain degree of latitude in closing argument. State v. Liberatore (1982), 69 Ohio St.2d 583, 589, 23 O.O.3d 489, 493, 433 N.E.2d 561, 566; State v. Brown (1988), 38 Ohio St.3d 305, 316, 528 N.E.2d 523, 537. Thus, it falls within the sound discretion of the trial court to determine the propriety of these arguments. State v. Maurer (1984), 15 Ohio St.3d 239, 269, 15 OBR 379, 404, 473 N.E.2d 768, 795. A conviction will be reversed only where it is clear beyond a reasonable doubt that, absent the prosecutor's comments, the jury would not have found appellant guilty. State v Loza (1994), 71 Ohio St.3d 61, 78, 641 N.E.2d 1082, 1102. Despite any alleged impropriety by the prosecutor, we believe that the jury would have nonetheless convicted him absent these comments; thus, we reject appellant's arguments.

In his fourth proposition of law, appellant alleges several additional instances of prosecutorial misconduct during the guilt phase of the trial. First, Benge claims that in closing argument, the prosecutor speculated on the evidence by arguing that at the time of the killing Benge panicked, that he never intended to leave the victim's body at the scene and had intended to take the victim's jewelry and bank book and dispose of it. Although these remarks are highly speculative, the prosecutor prefaced them by using the words "I think," which indicates this was his opinion. Even if improper, defense counsel failed to object to these comments, which we find do not rise to the level of plain error.

Appellant also claims that the prosecutor denigrated defense counsel. Appellant refers to an isolated incident where the prosecutor objected to the cross-examination of one of the state's witnesses and defense counsel responded by stating, "It's Cross-Examination." The prosecutor then said, "Well, Cross-Examination doesn't mean that you can get away with murder." Although this comment was certainly uncalled for and cannot be condoned, we do not believe that it deprived appellant of a fair trial. Cf. State v. Keenan (1993), 66 Ohio St.3d 402, 406-407, 613 N.E.2d 203, 207. Nor do we believe that the other instances of misconduct alleged by appellant warrant reversal. Accordingly, we reject these propositions of law.

III Sufficiency of Evidence

In Proposition of Law VI, appellant challenges the sufficiency of the evidence on the ground that the state failed to prove the underlying felony of aggravated robbery, as defined in R.C. 2911.01. According to appellant, the state failed to prove either that he murdered Judy Gabbard for the purpose of stealing her ATM bank card or that he actually stole it. Thus, he seeks reversal of his aggravated murder and aggravated robbery convictions.

In reviewing the sufficiency of the evidence, "[a] reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt." State v. Eley (1978), 56 Ohio St.2d 169, 10 O.O.3d 340, 383 N.E.2d 132, syllabus. The facts presented here were sufficient to enable a jury to find appellant guilty beyond a...